City of Portland v. Clifton

625 P.2d 1343, 51 Or. App. 369, 1981 Ore. App. LEXIS 2226

• Court: Court of Appeals of Oregon
• Decided: March 30, 1981
• Docket: No. DA 184935-8001, CA 18484, No. DA 187250-8002, CA 18485
• Status: Published

Opinion

JOSEPH, C. J.

After this court decided City of Portland v. Storholt, 50 Or App 231, 622 P2d 764 (1981), we reversed the judgment of conviction in this case per curiam. 50 Or App 613, 622 P2d 1158 (1981). Appointed counsel for the defendant has petitioned for allowance of an attorney’s fee pursuant to ORS 138.500(3).

The case arose under an ordinance of the City of Portland. It was prosecuted in the district court in Multnomah County, pursuant to ORS 46.045. ORS 46.800 provides, in pertinent part:

"(1) District courts are governed in their criminal and quasi-criminal actions and proceedings by the provisions of law regulating such actions and proceedings as provided in ORS chapters 131, 133, 135, 136 and 137, insofar as the same are or can be made applicable in the several cases arising before them * *

ORS 46.810 provides:

"An appeal taken from district court in a criminal action or proceeding shall be in accordance with and be subject to the provisions of ORS chapter 138.”

Under ORS 138.500(3), the Court of Appeals is required to determine, as provided by ORS 135.055, and allow compensation for counsel appointed under ORS 138.500. The compensation for counsel allowed by this court is to be paid by "[t]he county in which the final order or judgment appealed from was rendered * * The force of this statutory scheme is that petitioning counsel is entitled to a reasonable attorney’s fee and that fee is to be paid by Multnomah County, in this instance. We write this opinion to call to the attention of the legislature the apparent inequity of requiring Multnomah County to pay the costs of defending a City of Portland prosecution.

Petition allowed in the amount of $550.